Victor Costner v. Shinseki

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICTOR L. COSTNER,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2013-7063
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-3400, Judge Robert N. Davis.
______________________
Decided: June 5, 2013
______________________
VICTOR L. COSTNER, of Dandridge, Tennessee, pro se.
AUSTIN FULK, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC. With him on the brief were
STUART F. DELERY, Acting Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director. Of counsel on the brief
were MICHAEL J. TIMINSKI, Deputy Assistant General
2 VICTOR COSTNER v. SHINSEKI
Counsel, and JOSHUA P. MAYER, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE and O’MALLEY,
Circuit Judges.
PER CURIAM.
Victor L. Costner appeals pro se from the decision of
the United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the decision of the Board of
Veterans’ Appeals (“Board”) denying Costner entitlement
to an initial disability evaluation in excess of 50% for
post-traumatic stress disorder (“PTSD”) for a time prior to
August 28, 2001. Costner v. Shinseki, No. 11-3400, 2012
WL 6685690 (App. Vet. Dec. 26, 2012). Because Costner
only raises issues beyond our jurisdiction, we dismiss.
BACKGROUND
Costner served in the United States Army between
July 1966 and July 1968. In 1981, he filed a claim at the
Department of Veterans Affairs (“VA”) seeking disability
compensation for a nervous condition. The VA regional
office (“RO”) denied that claim. In 1999, he filed a claim
for PTSD, which the RO granted, awarding him disability
compensation for PTSD, rated at 50%, effective May 18,
1999. After a number of further decisions by the Board,
Costner was granted an earlier effective date of March 30,
1981 with a 50% disability rating prior to August 28,
2001, and a 100% disability rating following that date.
After Costner filed a Notice of Disagreement alleging that
he was totally disabled as of March 30, 1981, the Board
remanded for further development and requested the
opinion of a VA medical specialist.
In February 2011, a VA psychiatrist, Dr. Lynn Hunter
Hackett, reviewed Costner’s psychiatric records and
concluded that, although Costner suffered from PTSD, he
VICTOR COSTNER v. SHINSEKI 3
was not totally disabled until after August 2001, as evi-
denced by the stability in his marriage and steady work
history. Based on that assessment, the Board found that
Costner’s PTSD did not worsen (in excess of 50%) until
August 28, 2001. Costner appealed to the Veterans
Court.
The Veterans Court reviewed the evidence and Cost-
ner’s arguments and concluded that none of the evidence
cited by Costner established error in the Board’s decision
and therefore affirmed. This appeal followed.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. 38 U.S.C. § 7292. We “have
exclusive jurisdiction to review and decide any challenge
to the validity of any statute or regulation or any inter-
pretation thereof [by the Veterans Court] . . . and to
interpret constitutional and statutory provisions, to the
extent presented and necessary to a decision.” Id.§ 7292(c). We may not, however, absent a constitutional
challenge, “review (A) a challenge to a factual determina-
tion, or (B) a challenge to a law or regulation as applied to
the facts of a particular case.” Id. § 7292(d)(2). We there-
fore generally lack jurisdiction to review challenges to the
Board’s factual determinations. See, e.g., Johnson v.
Derwinski, 949 F.2d 394, 395 (Fed. Cir. 1991).
Costner argues that the Veterans Court erred in not
increasing his disability rating for the period prior to
August 2001, alleging that his “condition was worse back
then (1981 to 2001).” Appellant’s Informal Br. 1. He
faults the Veterans Court for crediting the opinion of Dr.
Hackett over other clinical reports and opinions in the
record. He also alleges that he should have been given an
examination to determine a disability rating in 1981
when he first filed for a nervous disorder.
4 VICTOR COSTNER v. SHINSEKI
Costner has not identified any statute or regulation
that he believes the Veterans Court misinterpreted or
that he believes is invalid. Nor has he raised any specific
constitutional issues that he is challenging on appeal.
Instead, he merely challenges the factual findings by the
Board, which were affirmed by the Veterans Court, and
the weight accorded the medical evidence in the record.
We do not have jurisdiction to review factual determina-
tions and the application of the law to the facts unless it
presents a constitutional issue, of which none is presented
here. 38 U.S.C. § 7292(d)(2); Jackson v. Shinseki, 587
F.3d 1106, 1109 (Fed. Cir. 2009). We likewise lack juris-
diction to review the weight given to evidence by the
Board. Maxson v. Gober, 230 F.3d 1330, 1332 (Fed. Cir.
2000) (“The weighing of this evidence is not within our
appellate jurisdiction.”).
Costner’s remaining argument that he should have
been granted a VA medical examination based on his
1981 disability claim raises only a question whether the
VA met its duty to provide a medical examination pursu-
ant to 38 U.S.C. § 5103A(d). However, the Veterans
Court did not address this argument and did not make a
decision on or interpret any aspect of § 5103A(d) that
would grant us jurisdiction under 38 U.S.C. § 7292(a).
We have considered Costner’s remaining arguments
and conclude that they are without merit. Accordingly,
we dismiss Costner’s appeal for lack of jurisdiction.
DISMISSED
COSTS
No costs.